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State Of Himachal Pradesh vs Suresh Kumar … Accused/ on 1 November, 2018

1

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 798 of 2008
Reserved on 12.10.2018

.

Decided on: 01.11.2018

State of Himachal Pradesh ….Appellant

Versus

Suresh Kumar … Accused/respondent

_
Coram r
The Hon’ble Mr. Justice Sanjay Karol, Judge

The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge
Whether approved for reporting? Yes.

For the appellant. : Mr. J. S. Guleria. Deputy Advocate General

For the respondent. : Mr. Jeevesh Sharma, Advocate

Chander Bhusan Barowalia, J.

By way of this appeal, the State has challenged the

judgment passed by the Court of learned Additional Sessions

Judge, Fast Track Court, Shimla, Himachal Pradesh in Sessions

Trial Court No. 7-S/7 of 2008, dated 22.08.2008 vide which,

learned trial court has acquitted the accused for the commission of

offences punishable under Sections 363, 376 and 506(II) of the

Indian Penal Code (in short ‘IPC’).

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2. Briefly, the facts of the case are that on 13th March,

2008, at 1.15 AM the prosecutrix (PW-1) accompanied by her

brother Shri Anil Kumar and step mother Smt. Santosh Devi went

.

to Police Post, Sarswati Nagar. There the former (prosecutrix) got

entered daily diary report No.17 averring therein that she is a

resident of village Kuddu. She is studying in the 8 th class in

Government High School, Kuddu. On 12.3.2008 around 7.00 AM,

she (prosecutrix) had gone from her house to their field. The said

filed is below the road. Shri Suresh Kumar (accused) is familiar to

her. He was standing on the road. She knows the accused as he

keeps on visiting the house of his mama (maternal uncle) in village

Kuddu. Spotting her, the accused asked her to come to the road.

She inquired from the accused as to why he is calling her. On this

the accused threatened that he has some work with her. Then, she

went to the road. The accused started talking to her and took her at

some distance from the road. Thereafter, the accused asked her to

accompany him. She refused to do so. On this, the accused caught

hold of her right arm and started pulling her towards the jungle.

She raised the alarm, but in vain. The accused proclaimed that in

case she cries for help, he will kill her. The accused took her at a

lonely place in Sanail Jungle away from the road by catching hold

of her arm. In the jungle, the accused made her to lie down and

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then put himself upon her. She started crying. The accused gagged

her mouth with his hand and threatened that in case she raises

hue and cry, he will do away with her life. She became panicky due

.

to the fear of the accused. The accused then opened the string of

her salwar inspite of her protest and had the sexual intercourse

with her forcibly. After that the accused took her to his house in

village Banpur against her will via the jungle. They reached the

house of the accused at about 12 noon. None was there in the

house of the accused at that time. The accused took her to a

room of his house and had the coitus for the second time with her

against her wish.

3. Thereafter, the accused made her to sit on the cot and

went away to cook the food. The accused then served the meals to

her. At about 8.00 PM her (complainant’s) elder brother Shri Anil

Kumar and Chacha (uncle) Shri Deepan Lal reached the house of

the accused while searching for her. Seeing them she started

weeping. She narrated the incident to her brother and uncle who

brought her with them to village Kuddu. At Kuddu, the entire

episode was divulged by her in front of her step mother Smt.

Santosh Devi. Her (PW-1’s) natural mother Smt. Bimla Devi was

not there in the house as she (Bimla) had gone to the house of her

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brother etc. Nerwa on 10.03.2008. Her (PW-1’s) father is serving

as a driver in the Forest Corporation and posted at Nahan.

4. After completion of investigation, challan was

.

presented in court and as a prima facie case was found against the

accused, he was charged for the commission of offences

punishable under Sections 363, 376 and 506(II) IPC, to which

accused pleaded not guilty and claimed trial. In support of case,

the prosecution, in all, examined 10 witnesses to establish its case.

The trial court acquitted the accused, as aforesaid. Hence, the

present appeal.

5. Mr. J.S. Guleria, learned Deputy Advocate General

emphatically argued that prosecution has proved the guilt of

the accused beyond shadow of any reasonable doubt. The

statements of the prosecution witnesses have not been

appreciated to its right perspective. On the other hand learned

counsel for the respondent has supported the judgment of

acquittal.

6. We have heard the learned counsel for the parties and

have gone through the records of the case meticulously.

7. Victim (PW-1) deposed that she studied up to the

8th class. On 12.03.2008, at about 7.00 AM, she went away for

answering the call of nature. She further stated that she had gone

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to the fields. Accused, who was standing on the road. He asked

her to come to the road on the pretext that he has some urgent

work. Then, she went to the road where the accused was

.

standing. The accused started talking to her and took her with him

at some distance. The accused asked her to accompany him to the

jungle. When she refused to accompany him, then the accused

caught hold of her arm and took her forcibly towards the jungle.

She cried for help, but none heard her shrieks, as none else was

there in the jungle. The accused threatened that in case, she do

not accompany him to the jungle,he will kill her. The accused

took her to Sandail Jungle. In the jungle, the accused forced her

to lie down. She cried for help. None came to her rescue. The

accused threatened that in case she raised the alarm, he will kill

her. The accused committed rape on her. Thereafter, the accused

took her to his house in village Banpur via jungle. Further stated

that they reached Banpur at about 1.00 P.M. None was there in

the house of the accused at that time. In his house, the accused

again raped her. The accused kept her in his house almost up to

8.00 PM. Then, her brother Anil Kumar and uncle Deepan Lal

reached the house of the accused. On seeing them, she started

weeping. She narrated the incident to Anil Kumar and Deepan

Lal. They brought her back to her house. After returning to her

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house, she narrate the incident to her step mother Smt. Santosh

Devi. Her real mother Smt. Bimla Devi was away to her parental

house at that time. Her father was at Nahan as he serving there.

.

On the same day, during the night, she alongwith others went to

Police Post, Saraswati Nagar. There they reported the matter to

the police. Her signatures were taken by the police. The copy the

rapat is mark-A. Further stated that she was got medically

examined by the police. The incident was narrated by her to the

doctor as well. Her clothes were taken into possession by the

doctor.

8. In her cross examination, the prosecutrix stated that they

are 7 brothers and sisters in all. Four sisters and one brother are

elder to her. One brother is younger to her All of us live in the

same house. Self stated, all her brothers and sisters are elder to

her have been married. Her married brother lives in the house in

which she reside. Her mother Bimla had gone to the house of her

parents one day prior to the incident. Her father had left for

Nahan on 7th March, 2008. The field where she had gone for

answering the call of nature is one kilometer away from the

house. It was admitted by her that people keep on moving in that

area. She also admitted that there was a school and road near

the field. The accused was standing on the road which is at a

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higher level than the field. Further admitted that she knew the

accused prior to the date of the incident. Self stated, the uncle of

the accused lives in her village Kuddi. She further admitted that

.

she knew the accused for the last about 5 years prior to the date of

the incident. Further admitted that her family members also knew

the accused since long. She and her family members were

not on visiting terms to the house of the uncle of the accused. She

further admitted that the accused and his uncle also never came to

her house in Kuddu. She further admitted that accused called her

by name when he was standing on the road. Further stated that

she and the accused started talking to each other and moving

towards the opposite direction of her house. The accused started

talking to her about the affairs of his family. At that time, the

accused did not force her to accompany him. Further admitted

that she was walking with the accused on the road on her own.

She further admitted that when she and accused were moving on

the road, none came and they walked for about 2-3 kilometers

while talking to each other. No way leads to the house the accused

from the rasta on which they were moving. The path ended in the

jungle where the accused had taken her. Prosecutrix also

admitted that the accused took her on foot to his house from

Sanail Jungle and they walked for about-4 hours. She further

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admitted that in between Sanail Jungle and the house of the

accused three villages i. e. Nakot, Salna and Kasta fall and there

are houses in these villages and people live there. She further

.

admitted that the accused crossed the villages during the day

time. Self stated, we moved through the villages secretly. Further

admitted that there is no house near to the house of the accused

and she remained in the house of the accused up to 8.00 PM.

Further admitted that the accused served me meals in his house

which she took. Further admitted that none came to the house of

the accused so long as she remain there. Further stated that Anil

Kumar is her step brother. From the entire version of the

prosecutrix it is clear that the prosecutrix accompany the accused

on her own and the allegations set out lateron by her are an

afterthought.

9. Brother of the prosecutrix namely Anil Kumar

entered in the witness box as PW-2 and stated that prosecutrix is

his step sister. They live in the same house. Further stated that

their father is posted at Nahan. Smt. Bimla Devi had gone to the

house of her parents in Nerwa. On 12/03/2008 at 7.00 AM, the

prosecutrix had gone away from home to answer the call of nature.

She did not return to home. Then he searched for her, but in

vain. On inquiry, his chacha(uncle) Pramod Kumar told him that

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he had seen the prosecutrix going on the road with the accused.

Thereafter, he, Pramod Kumar and Deepan Lal went to the house

of the accused in village Banpur. They reached Banpur at about

.

8.00 PM. The prosecutrix was there in the house of the accused.

After spotting us, the prosecutrix started weeping. She told them

that the accused had brought her forcibly to his house. She also

told us that the accused committed rape on her in the jungle and,

thereafter, in his house. When they reached the house of the

accused, the prosecutrix was sitting on a cot. A bed sheet was

spread over it. The accused was there in the house. From Banpur,

they brought the prosecutrix to their house in Kuddu. They then

went to Police Post, Saraswati Nagar and lodged the report. He

was joined by the police during the investigation. He had gone to

the house of the accused with the police in Banpur. A bed sheet

which was over the cot was taken into custody by the police from

the house of the accused. A memo in this regard was prepared.

The same is Ext. PA. It bears his signatures as a witness. S/Sh.

Pramod Kumar and Deepan Lal had also signed the memo.

10. In cross examination, he stated that he is a driver by

profession for the last about threeyears and they are seven

brothers and sisters in all. Further stated that he is married and the

prosecutrix is younger to him by 3 to 4 years. Further stated that

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he started searching for prosecutrix on 12.03.2008 at about 8.00

AM. Sh. Pramod Kumar told him at about 8.30 AM that he had

seen the prosecutrix and accused moving together on the road

.

near the school. Thereafter, he went towards the school in search

of his sister. The road on which the accused and the prosecutrix

were seen moving by Pramod Kumar leads to Tueni and the house

of the accused. The house of the accused about 15 kilometers

away from the place where she and the accused spotted by

Pramod Kumar. On the way to the village of the accused, other

villages come. The people reside there. After 8.30 he firstly went

to the jungle and thereafter, in the evening, they went to the house

of the accused. As per this witness, he, Pramod and Deepan Lal

had gone to the house of the accused. There are several houses

near to the house of the accused in village Banpur. They stayed in

the house of the accused for about 10-15 minutes. From Banpur,

they came to Kuddu alongwith the prosecutrix. Further stated that

the accused did not accompany them. He told the police that the

accused had accompanied them. Again said, that they brought

the accused from Banpur to Kuddu. He, prosecutrix, his mother

Santosh Kumari, Deepan Lal and Pramod had gone to the Police

Post. He and the prosecutrix had gone to the jungle and the house

of the accused with the police on 15.03.2008. He further averred

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that the spot was inspected by the police and the investigation

was done. Ext.PA was prepared by the police in the house of the

accused. He admitted that he and the prosecutrix knew the

.

accused prior to the date of the incident. He stated that application

Ext. PB of the police was received by him for supplying the date of

birth eradicate relating to the prosecutrix. He admitted that Sh.

Yash Pal Singh prepared the certificate Ext. PC and handed it over

per memo Ext. PD. He has brought the school admission and

withdrawal register to the Court. As per their record, the prosecutrix

was born on 15.5.1994. In the cross examination,he deposed that

the entry in the register was made by him. No birth certificate was

seen by him. He made the entry in the register on the basis of the

school leaving certificate of the 5th class issued by the primary

school authorities. He admitted that there are cutting in the register.

He does not know that the date of birth of the prosecutrix

mentioned in the register is in fact incorrect.

11. Sh. Yash Pal Singh (PW-3) was another witnesses

who stepped into the witnesses Box. He stated that he is posted

as a Teacher in Government High School, Kuddu. He stated that

application Ext. PB of the police was received by him for supplying

the date of birth eradicate relating to the prosecutrix. He prepared

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the certificate Ext. PC and handed it over, per memo Ext. PD. As

per their record, the prosecutrix was born on 15.05.1994.

.

12. In the cross examination, he deposed that the

entry in the register was made by him. No birth certificate was seen

by him. He made the entry in the register on the basis of the

school leaving certificate of the 5th class issued by the primary

school authorities. He admitted that there are cutting in the

register. He does not know that the date of birth of the prosecutrix

mentioned in the register is infact incorrect.

13. Sh. Mukesh Rupta (PW-4) was also stepped into

witnesses box. He is the Secretary, of Gram Panchayat, Kuddu.

He testified that application Ext.PE was received by him for

supplying the birth certificate of the prosecutrix. Certificate Ext. PF

was prepared by him on the basis of the pariwar register and then

given to the police vide memo Ext. PG which bears his signatures.

Ext. PH is the copy of the pariwar register Ex.PF is correct as per

the original.

14. In cross examination, he stated that he has

not brought the register of birth and death in the Court. He admitted

that the register which he has brought to the Court i. e. pariwar

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register is torn. There is no certificate on the register regarding the

pages it has Pariwar (family) register and birth/death register are

maintained separately. Pariwar register is kept to show the

.

members of the family. The date of birth mentioned in the register

of births and deaths is relevant. The entries in the register have not

been made by him. He refuted that a false certificate was issued

by him at the instance of police.

15. H.C. Gopal

to Singh (PW-5) brought

rojnamcha register and proved Ext. PJ i. e the copy of rapat No.17,

dated 13.3.2008. He continued to state that the said rapat was got
the

entered by the prosecutrix. It bears her signatures. The prosecutrix

was sent for medical examination alongwith the application Ext.

PK.

16. Lady Constable Dayawanti (PW-6) deposed

that on 13.3.2008, she had accompanied the prosecutrix to Primary

Centre, Saraswati Nagar, for her medical examination. The

medical officer handed over four sealed parcels and the MLC of the

prosecutrix to her. She (PW-6) in turn handed them to MHC

Mukesh Kumar of Police Station, Jubbal. During the period, the

case property remained with her of the accused which stands

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admitted by the defence. It depicts that the accused was found

capable of performing the sexual act.

.

17. MHC Mukesh Kumar (PW-7) of Police Station.

23, Jubbal testified that on 13.3.2008, Lady Constable Dayawanti

deposited four sealed parcels with him alongwith the sample seal

in the malkhana. Entries in this regard were made in the malkhana

register. Thereafter, on 14 and 17 March, 2008, various parcels

were sent by him

were deposited with him by constable Jagjit Singh. Entries in this

respect were also made in the malkliana register. All the parcels

Forensic Science Laboratory, Junga

on 18.3.2008 vide R.C No 15/08 through constable Rajesh Kumar

for chemical analysis. On his return to the Police Station, constable

Rajesh Kumar handed over the R.C. to him. So long as the case

property remained in his (PW-7’s) custody, the same remained.

18. Constable Rajesh Kumar (PW-8) stated that

eight sealed parcels and sample seals, entrusted to him by MHC

Mukesh Kumar (PW-7) vide R.C. No. 15/08, dated 18.3.2008. All

the parcels were deposited by him on the same day in FSL, Junga.

After returning to the Police Station, the R.C. was given by him.

During the period, the case property remained with him, the same

remained intact Pursuant to the police request Ext. PK the

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prosecutrix was medically examined by Dr. (Mrs.) Seema Sharma

(PW-10) She issued the medico legal certificate Ext.PR. The

clothes and vaginal swab etc, of the prosecutrix were preserved by

.

her, sealed and handed over to the police for chemical test. The

prosecutrix was referred to Civil Hospital, Rohru for X-Ray

examination and determination of her age. Final opinion was

reserved by her till the receipt of the report of the chemical

examiner. On 5.5.2008, the report of FSL, Junga was shown to her

by the police. As per the said report, human semen was detected

on the salwar and vaginal slides of the prosecutrix. She (PW-10)

then gave the opinion that the prosecutrix undergone the sexual

act within a period of around 24 hours. The Radiologist, DDU

Hospital, Shimla, suggested that the age of victim was more than

18 years. The skeletal age of the patient is 25, estimated on the

basis of various X-rays. In her cross examination, she testified that

as and when sexual act takes place between a male and female,

the first part of the female which comes in contact is Labia Majora.

Hymen can be torn due to various reasons apart from the sexual

act. She admitted that presence or absence of hymen is not a

criteria for coitus. In case of forcible penetration, there are chances

of the injuries being there on the private pars of a female. She

admitted that if a lady is subjected to forcible sexual intercourse,

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there are all probabilities that she will suffer some injury. In this

case, no injury was found.

.

19. PW-9 ASI Jaswinder Singh is the investigator. He

stated “In the month of March, 2008, he was posted as Incharge,

Police Post, Saraswati Nagar: The file was handed over to me for

investigation. He went to the spot in Sanail Jungle on 13/03/2008

and prepared the map Ext. PM showing the place of the incident.

The spot was identified by the prosecutrix. The accused was

arrested on the same day. He was got medically examined.

Application Ext. PN in this regard was moved by him. The MLC of

the accused was collected. The parcels containing the underwear

etc. of the accused, which were duly sealed, were handed over to

him by the doctor. The same were deposited with the MHC. On

15.03.2008, he went to the house of the accused alongwith the

prosecutrix and others. Site plan Ext. PO showing the house of the

accused was prepared by him. Mattress Ext. P-3 which was

identified by the prosecutrix was taken into possession from the

house of the accused per memo Ext. PA and sealed. The same

was also deposited with the MHC. The statements of the

witnesses were recorded by him as per their version. Certificates

relating to the date of birth of the prosecutrix were collected from

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the school and the Panchayat. A (Pagdandi ) footpath goes from

Sanail Jungle via the jungle to the house of the accused. No

house is near to the house of the accused. The houses are at

.

some distance. After the completion of investigation, he handed

over the file to SHO Pritam Singh for preparing the challan. The

challan was prepared by SI Pritam Singh. It bears his signatures.

He identify the same since he had worked with him. The FIR Ext.

PP has also been signed by SI Pritam Singh. The accused is

present in the Court. In his cross examination, he stated that the

prosecutrix and her brother had come to Police Post, Saraswati

Nagar at 1.30 AM on 13.03.2008. The prosecutrix was

accompanied by her brother, step mother and an uncle (chacha).

Firstly, the daily diary report Ext. PJ was entered. Then, the

prosecutrix was sent for medical examination. He had

accompanied the prosecutrix for her medical examination to PHC,

Saraswati Nagar From the hospital, he went with the prosecutrix to

the spot in Sanail Jungle. The prosecutrix etc. might have come in

a vehicle to the Police Post for lodging the report. From the

hospital, we took lift in a private vehicle and went to the spot. The

step mother, brother Anil Kumar and chacha of the prosecutrix had

accompanied us to the spot. We reached Sanail Jungle on

13.03.2008 at about 12.30 noon. The spot is about 1.5 kms. away

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from the house of the prosecutrix. If one goes from the house of the

prosecutrix to Sanail Jungle. There is a pucca road and school on

the way. There were no blood stains etc. on the spot. The

.

prosecutrix has one brother and one sister. The brother is elder

one. He is aged about 18-19 years. Next to the brother is the

prosecutrix. He came to know at the time of investigation that the

prosecutrix is 3-4 years younger to her brother. He did not join the

natural mother of the prosecutrix namely Bimla Devi and Sh. Shyan

Lal (father of the prosecutrix) during the investigation. Self stated,

both of them were not there in the house on that day. He had

demanded from the father etc. of the prosecutrix her date of birth

certificate which they were not having. The distance between

Sanail Jungle and the house of the accused is only 1-5 kms. on

foot. He had gone to the house of the accused via

‘pagdandi'(footpath). Further stated that it is incorrect to suggest

that the ‘pagdandi’ (footpath)passes through villages Nakot, Salna

and Kasta. These villages are populated. Further stated that they

reached the house of the accused on 15.03.2008

at about 1.30 PM. He denied that the houses are there

abutting the house of the accused. Self stated, the houses are at

some distance. He had inquired from the neighbours of the

accused about the incident. They knew nothing. Further stated that

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it is incorrect to suggest that he had recorded the statements of the

witnesses of his own just to support the false case of the

prosecution.

.

20. This is primarily the evidence on the strength of which

the prosecution wants the conviction of the accused.

21. The Hon’ble Supreme Court has held in State of
Punjab Vs. Gurmit Singh and others, (1996) 2 Supreme Court

Cases 384 as under:-

“x x x x x x x x x x The courts must, while evaluating
evidence, remain alive to the fact that in a case of rape, no
self-respecting woman would come forward in a court just to

make a humiliating statement against her honour such as is
involved in the commission of rape on her. In cases

involving sexual molestation, supposed considerations
which have no material effect on the veracity of the
prosecution case or even discrepancies in the statement of
the prosecutrix should not, unless the discrepancies are

such which are of fatal nature, be allowed to throw out an
otherwise reliable prosecution case. The inherent
bashfulness of the females and the tendency to conceal
outrage of sexual aggression are factors which the Courts

should not over-look. The testimony of the victim in such
cases is vital and unless there are compelling reasons which
necessitate looking for corroboration of her statement, the

courts should find no difficulty to act on the testimony of a
victim of sexual assault alone to convict an accused where
her testimony inspires confidence and is found to be

reliable. Seeking corroboration of her statement before
relying upon the same, as a rule, in such cases amounts to
adding insult to injury. Why should the evidence of a girl of a
woman who complains of rape or sexual molestation, be
viewed with doubt, disbelief or suspicion? The Court while
appreciating the evidence of a prosecutrix may look for
some assurance of her statement to satisfy its judicial
conscience, since she is a witness who is interested in the
outcome of the charge levelled by her, but there is no
requirement of law to insist upon corroboration of her
statement to base conviction of an accused. The evidence

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of a victim of sexual assault stands almost at par with the
evidence of an injured witness and to an extent is even
more reliable. Just as a witness who has sustained some
injury in the occurrence, which is not found to be self
inflicted, is considered to be a good witness in the sense

.

that he is least likely to shield the real culprit, the evidence

of a victim of a sexual offence is entitled to great weight,
absence of corroboration notwithstanding. Corroborative
evidence is not an imperative component of judicial
credence in every case of rape. Corroboration as a condition

for judicial reliance on the testimony of the prosecutrix is not
a requirement of law but a guidance of prudence under
given circumstances. It must not be over-looked that a
woman or a girl subjected to sexual assault is not an
accomplice to the crime but is a victim of another persons’s

lust and it is improper and undesirable to test her evidence
with a certain amount of suspicion, treating her as if she
were an accomplice. Inferences have to be drawn from a
given set of facts and circumstances with realistic diversity
and not dead uniformity lest that type of rigidity in the shape

of rule of law is introduced through a new form of testimonial

tyranny making justice a casualty. Courts cannot cling to a
fossil formula and insist upon corroboration even if, taken as
a whole, the case spoken of by the victim of sex crime
strikes the judicial mind as probable. In State of
Maharashtra Vs. Chandraprakash Kewalchand Jain (1990

(1) SCC 550) Ahmadi, J. (as the Lord Chief Justice then
was) speaking for the Bench summarised the position in the
following words: (SCC p. 559, para 16)

“A prosecutrix of a sex offence cannot be put on par
with an accomplice. She is in fact a victim of the

crime. The Evidence Act nowhere says that her
evidence cannot be accepted unless it is
corroborated in material particulars. She is
undoubtedly a competent witness under Section 118

and her evidence must receive the same weight as is
attached to an injured in cases of physical violence.
The same degree of care and caution must attach in
the evaluation of her evidence as in the case of an
injured complainant or witness and no more. What is
necessary is that the court must be alive to and
conscious of the fact that it is dealing with the
evidence of a person who is interested in the
outcome of the charge levelled by her. If the court
keeps this in mind and feels satisfied that it can act
on the evidence of the prosecutrix, there is no rule of

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law or practice incorporated in the Evidence Act
similar to illustration (b) to Section 114 which requires
it to look for corroboration. If for some reason the
court is hesitant to place implicit reliance on the
testimony of the prosecurtix it may look for evidence

.

which may lend assurance to her testimony short of

corroboration required in the case of an accomplice.
The nature of evidence required to lend assurance to
the testimony of the prosecutrix must necessarily
depend on the facts and circumstances of each case.

But if a prosecutrix is an adult and of full
understanding the court is entitled to base a
conviction of her evidence unless the same is shown
to be infirm and not trustworthy. If the totality of the
circumstances appearing on the record of the case

disclose that the prosecutrix does not have a strong
motive to falsely involve the person charged, the
court should ordinarily have no hesitation in accepting
her evidence. ”

22.

The Hon’ble Supreme Court in Radhu Vs. State of

Madhya Pradesh, (2007) 12 Supreme Court Cases 57 held as

under:-

” 6. It is now well settled that a finding of guilt in a case of rape,
can be based on the uncorroborated evidence of the prosecutrix.
The very nature of offence makes it difficult to get direct

corroborating evidence. The evidence of the prosecutrix should
not be rejected on the basis of minor discrepancies and
contradictions. If the victim of rape states on oath that she was

forcibly subjected to sexual intercourse, her statement will
normally be accepted, even if it is uncorroborated, unless the
material on record requires drawing of an inference that there

was consent or that the entire incident was improbable or
imaginary. Even if there is consent, the act will still be a ‘rape’, if
the girl is under 16 years of age. It is also well settled that
absence of injuries on the private parts of the victim will not by
itself falsify the case of rape, nor construed as evidence of
consent. Similarly, the opinion of a doctor that there was no
evidence of any sexual intercourse or rape, may not be sufficient
to disbelieve the accusation of rape by the victim. Bruises,
abrasions and scratches on the victim especially on the forearms,
writs, face, breast, thighs and back are indicative of struggle and
will support the allegation of sexual assault. The courts should, at

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22

the same time, bear in mind that false charges of rape are not
uncommon. There have also been rare instances where a parent
has persuaded a gullible or obedient daughter to make a false
charge of a rape either to take revenge or extort money or to get
rid of financial liability. Whether there was rape or not would

.

depend ultimately on the facts and circumstances of each case.”

23. In Narender Kumar Vs. State (NCT of Delhi), (2012) 7 Supreme

Court Cases 171, the Hon’ble Supreme Court held as under:

“20. It is a settled legal proposition that once the
statement of prosecutrix inspires confidence and is accepted
by the court as such, conviction can be based only on the
solitary evidence of the prosecutrix and no corroboration

would be required unless there are compelling reasons which
necessitate the court for corroboration of her statement.
Corroboration of testimony of the prosecutrix as a condition for
judicial reliance is not a requirement of law but a guidance of
prudence under 1 Page 12 the given facts and circumstances.

Minor contradictions or insignificant discrepancies should not

be a ground for throwing out an otherwise reliable prosecution
case.

21. A prosecutrix complaining of having been a victim of
the offence of rape is not an accomplice after the crime. Her

testimony has to be appreciated on the principle of
probabilities just as the testimony of any other witness; a high
degree of probability having been shown to exist in view of the
subject matter being a criminal charge. However, if the court

finds it difficult to accept the version of the prosecutrix on its
face value, it may search for evidence, direct or substantial,

which may lend assurance to her testimony. (Vide: Vimal
Suresh Kamble v. Chaluverapinake Apal S.P and Vishnu v.
State of Maharashtra).

22. Where evidence of the prosecutrix is found suffering
from serious infirmities and inconsistencies with other material,
prosecutrix making deliberate improvements on material point
with a view to rule out consent on her part and there being no
injury on her person even though her version may be
otherwise, no reliance can be placed upon her evidence.
(Vide: Suresh N. Bhusare Ors. v. State of Maharashtra.

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23

23. In Jai Krishna Mandal Anr. v. State of Jharkhand,
this Court while dealing with the issue held: (SCC p. 535, para

4)

“4…….the only evidence of rape was the statement of the

.

prosecutrix herself and when this evidence was read in its

totality, the story projected by the prosecutrix was so
improbable that it could not be believed.”

24. The Hon’ble Supreme Court of India in

Manoharlal Vs. State of Madhya Pradesh, (2014) 15

Supreme Court Cases 587 held as under:-

“8.

Though as a matter of law the sole testimony of the
prosecutrix can sufficiently be relied upon to bring home the
case against the accused, in the instant case we find her

version to be improbable and difficult to accept on its face
value. The law on the point is very succinctly stated in

Narender Kumar v. State (NCT of Delhi), to which one of us
(Dipak Misra, J). was a party, in following terms: (SCC p. 178,
paras 29 and 21)

“20. It is a settled legal proposition that once the statement of

the prosecutrix inspires confidence 4 Page 5 and is accepted
by the court as such, conviction can be based only on the
solitary evidence of the prosecutrix and no corroboration
would be required unless there are compelling reasons which

necessitate the court for corroboration of her statement.
Corroboration of testimony of the prosecutrix as a condition for

judicial reliance is not a requirement of law but a guidance of
prudence under the given facts and circumstances. Minor
contradictions or insignificant discrepancies should not be a

ground for throwing out an otherwise reliable prosecution
case.

21. A prosecutrix complaining of having been a victim of the
offence of rape is not an accomplice after the crime. Her
testimony has to be appreciated on the principle of
probabilities just as the testimony of any other witness; a high
degree of probability having been shown to exist in view of the
subject-matter being a criminal charge. However, if the court
finds it difficult to accept the version of the prosecutrix on its

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24

face value, it may search for evidence, direct or circumstantial
which may lend assurance to her testimony.”

(emphasis in original)

9. Having found it difficult to accept her testimony on its face

.

value, we searched for support from other material but find

complete lack of corroboration on material particulars. First,
the medical examination of the victim did not result in any
definite opinion that she was subjected to rape. Secondly,
Riyaz who was like a brother to the victim and thus a close

confidant, has not supported the case of the prosecution and
has completely denied having met her when she allegedly
narrated the incident to him. Thirdly the person who was 5
Page 6 suffering from fever and to whose house she was first
taken by the appellant was not examined at all. Fourthly, the

policeman who the victim met during the night was also not
examined. Fifthly, neither the brother nor any of the parents of
the victim were examined to corroborate the version that she
had come from the village of her brother and alighted around
10:00 P.M. at Bajna bus stand. Lastly, the sequence of events

as narrated would show that she had allegedly accompanied

the appellant to various places. In the circumstances, we find
extreme difficulty in relying upon the version of the victim
alone to bring home the charge against the appellant. We are
inclined to give benefit of doubt to the appellant.”

25. It is also relevant to refer to the judgment of the Hon’ble

Supreme Court in Tilak Raj Vs. State of Himachal Pradesh, AIR

2016 Supreme Court 406, in which the Hon’ble Supreme Court held

as under:-

“19. We have carefully heard both the parties at length
and have also given our conscious thought to the material on
record and relevant provisions of The Indian Penal Code (in
short “the IPC”). In the instant case, the prosecutrix was an
adult and mature lady of around 40 years at the time of incident.
It is admitted by the prosecutrix in her testimony before the trial
court that she was in relationship with the appellant for the last
two years prior to the incident and the appellant used to stay
overnight at her residence. After a perusal of copy of FIR and
evidence on record the case set up by the prosecutrix seems to
be highly unrealistic and unbelievable.

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25

23. From the aforesaid, it is clear that the evidence of the
prosecution is neither believable nor reliable to bring home the
charges leveled against the appellant. We are of the view that
the impugned judgment and order passed by the High Court is

.

not based on a careful re-appraisal of the evidence on record

by the High Court and there is no material evidence on record
to show that the appellant is guilty of the charged offences i.e.,
offence of cheating punishable under Section 417 of IPC and
offence of criminal intimidation punishable under Section 506

part I of IPC. ”

26. Coming to the facts of the present case, when we

compare the statements of PW1, PW2 and PW3 one thing which is

apparent and evident is this that there are material contradictions

and inconsistencies in the statements of these three vital

witnesses. From the facts it is clear that the accused and

prosecutrix knew each other since long and have love affairs with

each other. In cross examination, she admitted everything and

there is nothing which goes against the accused. The prosecutrix

(PW-1) gave her age as 14 years while testifying in the Court.

Strangely, she did not state on oath that she is 14 years old. Even

she did not mention her exact date of birth on oath while testifying

as PW-1. While drawing attention to Exts. PC and PF i.e. the birth

certificates issued by the school and panchayat authorities as well

as Ext. PH i.e. the copy of the pariwar register, the learned PP

argued that the prosecutrix was born on 15.5.1994 and she was

less than 14 years of age at the time of incident. On the other

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26

hand while taking into consideration the statement of Dr.(Mrs.)

Seema Sharma (PW-10), the medical evidence suggests that the

prosecutrix was more than 18 years of age at the relevant time. In

.

these circumstances, the age of the prosecutrix is definitely more

than 18 years on the date of the incident.

27. Brother of the prosecutrix namely Anil Kumar (PW-2)

entered in the witness box and stated that prosecutrix is his step

sister. They resides in the same house. The house of the

accused is about 15 kilometers away from the place where she

and the accused spotted by Pramod Kumar. From the statement of

this witness, nothing wrong goes in favour of the accused as it is

an admitted fact that the accused and prosecutrix knew each other

since long and have affairs with each other.

28. PW-3 has deposed he and the prosecutrix knew the

accused prior to the date of the incident. He stated that application

Ext. PB of the police was received by him for supplying the date of

birth eradicate relating to the prosecutrix. He admitted that Sh.

Yash Pal Singh prepared the certificate Ext. PC and handed it over

per memo Ext. PD. He has brought the school admission and

withdrawal register to the Court. As per their record, the prosecutrix

was born on 15.5.1994.

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27

29. In the cross examination, he deposed that the

entry in the register was made by him. No birth certificate was seen

by him. He made the entry in the register on the basis of the school

.

leaving certificate of the 5th class issued by the primary school

authorities. He admitted that there are cutting in the register. He

does not know that the date of birth of the prosecutrix mentioned in

the register is in fact incorrect.

30.

The prosecutrix did not mention her exact date of

birth on oath while testifying as PW-1. School certificate regarding

the age i.e. Ext. PC was proved by Shri Yash Pal (PW-3). He

deposed that this certificate was issued by him on the basis of the

school admission and withdrawal register. The entry in such

register was made by him (PW-3) on the basis of the school

leaving certificate of the 5th class issued by Primary school

Authorities. No birth certificate was seen by him. He admitted that

there are cuttings in the register. Further stated that he does not

know that the date of birth of the prosecutrix detailed in the school

leaving certificate and the register is actually wrong. The other

certificate i.e. Ext. PF was issued by Shri Mukesh Rupta (PW-4),

Secretary, Gram Panchayat, Kuddu, on the basis of the entries

03/11/2018 22:56:25 :::HCHP
28

existing in the pariwar register (PH), which is only to record the

members of Pariwar(family).

.

31. Besides, this another relevant aspect of the matter is

that it stands established on record that victim and the accused

were not strangers to each other and were well known to each

other, as the victim had herself admitted this fact. There is no

cogent explanation given by the victim as to why she did not raise

any hue and cry when accused purportedly took her

jungle or when she was staying with the accused at his house.

There is no cogent explanation coming forth from the version of
towards

victim about date of birth. All these facts create a serious doubt

over the case of the prosecution, in fact, the version which has

been put forth by the victim and the statement does not seem to be

cogent and reliable.

32. Simultaneously, as discussed above, the statements

of PW2 and PW3 vis-à-vis the statements other witnesses are not

supporting the case of the prosecution.

33. It is settled law that a prosecutrix complaining of

having been a victim of the offence of rape is not an accomplice

after the crime. There is no rule of law that her testimony cannot be

acted upon without corroboration in material particulars. This is for

03/11/2018 22:56:25 :::HCHP
29

the reason that the prosecutrix stands at a higher pedestal than an

injured witness. However, the fact still remains that the testimony of

the prosecutrix on the face of it has to be acceptable. {See State

.

of U.P. Vs. Pappu alias Yunus and another (2005) 3 Supreme

Court Cases 594}.

34. In the present case, the statement of the prosecutrix

on the face of it does not seem to be acceptable nor does it seem

to be trustworthy so as to be made basis for the conviction of the

accused. r

35. Though, it is settled law that corroboration is not sine

qua non for conviction in a rape case, however, it is relevant to

refer to the judgment of Hon’ble Supreme Court in Rameshwar Vs.

State of Rajasthan AIR 1952 SC 54, in which it has been

observed as under:-

“The rule, which according to the cases has
hardened into one of law, is not that corroboration

is essential before there can be a conviction but
that the necessity of corroboration, as a matter of
prudence, except where the circumstances make

it safe to dispense with it, must be present to the
mind of the judge….”

36. It is settled law that in cases under Sections 363, 376

and 506 of the Indian Penal Code, the conviction of the accused can

be based on the sole testimony of the prosecutrix, but for that the

testimony of the prosecutrix has to be cogent, reliable, trustworthy

03/11/2018 22:56:25 :::HCHP
30

and truthful. In our considered view, in the facts and circumstances of

the present case, none of the above mentioned ingredients are

present in the testimony of the prosecutrix. Neither her statement is

.

cogent nor the same is reliable or trustworthy. On the contrary, it is

apparent from the perusal of her statement that she had willfully done

everything.

37. Therefore, on the basis of the material on record, in our

considered view, the prosecution has miserably failed to prove a case

under Sections 363, 376 and 506(II) of the Indian Penal Code against

the accused beyond reasonable doubt. There is neither any

perversity nor any infirmity with the judgment of acquittal and the

findings returned in this regard by the learned trial Court. Accordingly,

the present appeal filed by the appellant is dismissed. Bail bonds are

cancelled.

(Sanjay Karol)
Judge

(Chander Bhusan Barowalia)
Judge

November 1, 2018
*brb*

03/11/2018 22:56:25 :::HCHP

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